Friday, December 01, 2017

Reform-proof attitudes

I may be wrong, but even in Kenya the police surely must undergo some form of training to know when and how to use deadly force. It is thereason why the Kenya Police Service has Kiganjo and the Administration Police Service has Manyani. Lord knows where the General Service Unit undergoes firearms training, but I am assuming the same basic instruction will cover the hows and wherefores of the use of deadly force.

What I cannot be sure of is whether the so-called police reforms recommended in the Ransley Report took into account the reason for the existence of the National Police Service: national security. The Constitution defines "national security" as,
"the protection against internal and external threats to Kenya’s territorial integrity and sovereignty, its people, their rights, freedoms, property, peace, stability and prosperity, and other national interests."
Despite the constitutional definition of "national security", which applies to the national security organs established in Article 239 (1) including the National Police Service, the principal reason for the existence of the police is the preservation of the power, authority, prestige and dignity of the national Executive as personified in the President. In the Service's mind, anything that threatens the power, authority, prestige or dignity of the President is a treasonous crime, and anyone who commits that crime is guilty of treason and anyone who offers the traitor any assistance whatsoever deserves the same fate.

The National Police Service very rarely sees its principal duty as the safety of the people or their property. Indeed, one of the signs that it considers the people as the enemy or potential enemies or fifth columnists hell-bent on aiding in the commission of treasonous acts by the enemies of the President is the hyper-militarisation of public spaces: the police occupy these spaces as it were an military occupying force in enemy territory. It is why policemen are always armed with assault rifles and situate armed personnel carriers at key choke-points in public spaces, especially urban areas.

Because of its character and guiding philosophy, it is almost certain that the policeman who shot dead Geoffrey Mutinda will ever be known or held to account for his or her actions. The late Master Mutinda was a casualty of a policy that treats any possible embarassment of the Commander-in-Chief as a national security crisis to which the only rational response is overwhelming and deadly force. Master Mutinda was killed because he lived in an area whose residents had allowed to be used by traitors who intended to embarass the President on the day he was to take his oath of office. This could not stand. And when less effective messages were ignored by the President's enemies (senior officials in the county government arranged for lorry-loads of garbage and sewerage to be dumped in the venue), there was no choice but to put down the treasonous insurrection with deadly force if needed. The President's enemies would not back down. The use of live ammunition was inevitable. Master Mutinda's tragic death was all but certain.

How the police reacted afterwards is instructive. A senior member of the National Police Service declared that the police is "the authority that enforces the law", implying that it is the police to decide what the law means, including when it is fit and proper to enter any area under force of arms and deploy deadly force to deal with a threat to peace and [national] security. Since the general election of the 26th August and the second inaugural of the President on the 28th December, the number of Kenyans who have been killed by the police as it attempted to crash all attempts at embarassing the President have only exposed the National Police Service as a handmaiden to a philosophy that has defied all reform. We have issued them with new insignia, uniforms and titles but policemen retain the same attitudes they did before the promulgation of the Constitution in August 2010 and no constitutional definition of the Service's mandates will change the situation unless the reason for its existence changes.

Thursday, November 30, 2017

Amateurs!

How do you get to Carnegie Hall? Practice, practice, practice.
It's an old joke but in it is a lesson that we all eventually come to learn, some the hard way and some not so hard. There are many young people who watch the effortlessness with which TV characters solve problems and achieve their wildest dreams, from attractive spouses to unimaginable riches , and who delude themselves that it is possible to simply come into the skills witnessed on TV without hard work. Practice is something they stopped doing when they finished secondary school because, as I have been reassured by many, "degree ni mchango".

I may never find out what motivated university students to hatch a plan to rob a bank and I will not subscribe to the self-serving cop-out by one of the thieves' father that his son robbed the bank because society has normalised theft. I, however, have an explanation of why the thieves were caught: this is not what they did for a living. They were mere amateurs, unpracticed in bank robberies and getting away with the crime.

It is only normal for "right-thinking" Kenyans to have a dim view of the "criminal underclass".  After all, they have rejected the norms of honest living, hard work and communal trust for the high risk, high reward world of crime. Every day amateur criminals are arraigned before magistrates, having tripped up on their way to cashing in on their ill-gotten gains. A basic truth often escapes them: to successfully live a life paid for by the proceeds of crime, practice makes perfect.

It matters not whether the crime is bank robbery, purse-snatching, chicken theft or fraud - practice, practice, practice and you will make it to the Carnegie Hall of a successful life of crime. Our intrepid bank robbers came up with a caper that captured the imagination, an echo of successful TV bank robberies involving tunnels and unsuspecting coppers. It turns out that this was the easy part. The hard part was getting away with the crime; fifty million shillings might be a piddly sum for many successful fraudsters in Kenya, but for young university boys, it is a headache that almost always develops into an unmanageable migraine. It is probably only after they had the money at hand that it occurred to them that disappearing fifty million shillings is not easy. This is where the "practice" part would have come in handy.

Knowing who to deal with when "washing" fifty million is not information that is offered on street corners and dimly lit bars. Only the known members of the criminal underclass have access to this kind of information and you only become a member of the criminal underclass by having proven yourself time and again by doing what criminals do: rob, cheat, steal. It would help that you have been a guest of the Government on at least one occasion to build up your rep as a proper criminal. We all now, but cannot prove, that there is a vast network that is capable of turning fifty stolen millions into untraceable assets and the only people who have access to it do not include ambitious university students with a plan.

Of course, a simple question should have occurred to them to ask: why had no one before them pulled off such a caper? They were not the first ones to have come up with the brilliant idea of tunnelling into a bank vault in Kenya. There is a reason why in Kenya the preferred mode of taking banks' monies almost always were either inside jobs involving bank tellers and their managers or violent assaults on cash-in-transit convoys that almost never ended in death or bloodshed. Kenya's criminals are not fools: the one-third of the national budget that goes missing every year should tell you that it is not to be trifled with. So there is a reason why banks haven't had their safes tunnelled into from the outside. That they probably didn't ask this question almost guarantees that they will be convicted and sent to prison. Amateurs!

Monday, November 27, 2017

Democracy for teenagers

I watched an ODM speaker of a county assembly and a Jubilee member for a Rift Valley constituency appear on a TV current affairs show in which they were giving their honest views about the National Resistance Movement's "people's assemblies". It was clear that they had entrenched positions: the ODM guy, a lawyer, could cite, chapter and verse, the provisions of law that gave legitimacy to the NRM scheme while the Jubilee hardliner, a former parastatal CEO, couldn't understand what miraculous constitutional interpretation that permitted such an abomination to be contemplated by otherwise intelligent people. What was painfully clear to viewers was that both held each other in utter contempt. The ODM guy couldn't believe he had to discuss serious matters of law and constitutional interpretation with a man he was sure had the intellectual heft of a loaf of bread. The Jubilee hothead couldn't understand how a county speaker in a backwater county who looked as if he was starving thought he was his peer, a member of the National Assembly and a leading light of the ruling alliance. They spoke past each other and at each other that it is almost certain that this is how the next year will be. Clearly, this is democracy for teenagers.

Tuesday, November 21, 2017

Political magnanimity is the only way

Raila Odinga and Kalonzo Musyoka were on the ballot on the 26th October, 2017 when the fresh election ordered by the Supreme Court on the 1st September was conducted by the electoral commission. Mr Odinga had announced that he would not participate in the election and neither he nor his running mate campaigned at all for the fresh election. The day after the fresh election, Mr Odinga announced the formation of the National Resistance Movement, NRM, and urged his followers and supporters to boycott companies and their products because of their association with the Jubilee government, its members, supporters and followers.

Between the invalidation of the presidential election on the 1st September and the dismissal of two petitions challenging the result of the fresh election on the 20th November, much blood has been spilt in Kenya. The victims have been the poor and the perpetrators have mostly been policemen. Incendiary language by members and supporters of the Jubilee Party as well as of the NRM have heightened tensions, with the latter accusing the former of using national security organs to entrench "dictatorship" in Kenya and the former accusing the latter of undermining the peace, unity, stability and security of the nation.

Meanwhile, though Government has settled matters with Kenya's nurses who were on strike for almost half a year, university staff are still on strike on account that their dues, hard won after a previous strike, have not been settled by Government. No one knows when the strike will end and whether the lecturers' demands will be met; after all, Government spent an additional unanticipated twelve billion shillings on the fresh elections, money that was raised by drastically reducing allocations to all public institutions. Increased taxes loom menacingly over the horizon because of this.

What is clear, though, is that there are those who will take advantage of the fraught politics of the country to advance their own agendas. Like a senior member of the Jubilee Party who has fervently, and hysterically, advanced the proposal for "benevolent dictatorship", in which the wise and enlightened president will eschew the finer points of the Bill of Rights -- because democracy is a stumbling block -- in order to accelerate our economic development along the model pioneered by the Asian Tigers. He isn't so much interested in development per se so much as the violent suppression of men and women who have refused to bow down to the inimitable logic of the superiority of one ethnic community over all others.

Among the members of the NRM, a self-styled "general" has emerged as a vocal voice of the NRM cause. It isn't lost on keen observers that the bombastic and uncouth bully is a failed politician who had a spectacular falling out with Mr Odinga. His rudeness and oftentimes misogyny rubs even people who would agree with him on political issues the wrong way. During the run-up to the 8th August election, he had nothing but unflattering things to say about Raila Odinga and all who surrounded him deeming them as corrupt among other unproven allegations. His dwindling political fortunes have proven to be his Damascene conversion to all causes dear to Mr Odinga's heart.

We are confronted by a Jubilee government that enjoys unparalleled advantages: it enjoys a majority in both Houses of Parliament and controls a majority of Governor's offices and county assemblies. If its previous behaviour during the life of the Eleventh Parliament is anything to go by, little inspires confidence that its tyranny of numbers will be used for the national good. It is almost certain that the national debt will continue to careen out of control, the misuse and abuse of national security organs will become more brazen and more and more public servants will down their tools in frustration. "Business as usual" will bring us nothing but grief.

No one expects magnanimity from the Jubilee's electoral winners but it is sorely called for. The first step is to acknowledge that the NRM has genuine grievances and that Raila Odinga is the NRM's unchallenged leader. For sure minnows like the Third Way Alliance have a stake in the political arena, but it is foolhardy to build them up as some sort of alternative to the political constituency commanded by the NRM. The only way out of this political morass are negotiations between the ruling alliance and the NRM, while taking into account all the outstanding political questions of the past fifteen years, including the recommendations of the TJRC report and the Ndung'u report. We have kicked the can of political myopia long enough down the road. It is time to settle our political problems once and for all.

Thursday, November 09, 2017

Zeke is not an outlier

I don't know who had the great idea of Punk'ng Ezekiel Mutua, the major domo (pun very much intended, my Swahili-speaking friend) of the Kenya Film Classification Board, but they are geniuses and their bosses should give them a massive raise.

This past week, at the ungodly hour of 4:00 a.m. and perusing the still-at-140-characters of Twitter, I stumbled upon a Nairobi News link to a YouTube audio with our favourite Christian-censor-warrior-in-chief. Someone had the good sense to ask him what he thought of the gay lions in the Mara. As I understand it, some mzungu tourist doing his tourist-y thing saw two, full-mane lions, doing the nasty and decided to commit the event to digital memory. Needless to say, the pictures have gone viral. Then someone -- seriously, Nairobi News, that person needs a massive raise -- decided to call Good Ol' Zeke and seek his, uhmmm, opinion on the matter.

Of course Zeke wasn't diving head first into the whys and wherefores without confirming a few things. He needed to see the lions' "bio" to confirm that, indeed, they were lions and not overly hirsute lionesses. He was also quick enough to remind his interlocutor that "we don't regulate lions" but the "conduct of human beings" according to law. Then he suggested that some research was needed into the "phenomenon". Then he got into the substance of it all -- "on a lighter note", as he put it.

He found the actions of the lions "bizarre, totally bizarre" and "it is not normal". He declared with seeming zoological authority, I might add, that "the very nature of intimacy, even among animals, is between male and female". He suggested that the lions "ideally, they should be isolated" because "that is a phenomenon for scientific study". He reminded his interlocutor that he has "always argued that homosexuality has some demonic force behind it" and "demons even inhabit animals". In his very strong belief, the lions "are demon-possessed" and that the "demonic spirit inflicting humanity seems to have caught up with animals".

His advice was that we should "isolate the crazy gay animals, study their behaviour, they might require counselling, it could be something that we can arrest because it is not even normal among animals" because "very idea of sex, even among animals, is for procreation". He argued that "we have normalised abnormal behaviours to the extent that even animals are aping" completely missing the irony of using "aping" in this context. On being questioned how the lions would be counselled, Ol' Zeke had the perfect zinger: "probably they have been influenced by the gays who have been going to the game reserves or to the national park and behaving badly! Male and male, in the bush" completely missing the innuendo inherent in "in the bush".

Other than the Standard Three language (and reasoning) by Ol' Zeke, it is interesting to see how resilient long-discarded notions of homosexuality are in Kenya and how much sway they hold over senior public officers. In his mind, there are only two possibilities to gay lions: demon-possession or men behaving badly in the bush in sight of lions. These are his sincerely-held beliefs. Facts -- scientific facts -- are not as persuasive as these beliefs. If you are not horrified at the intellectual rigour that our censor-in-chief brings to public discourse and, it is presumed, public administration, then you don't know how scared you should be. It is time you started paying attention to these things because Ol' Zeke, funny as he is, is not an outlier. He has many senior colleagues. Some of them carry firearms.

The inadequate band-aid

What happens if everyone seeks a private solution to public problems? --
It is the year 2017, Current Era, and there is a wave that threatens to wash over the addle-minded enamoured of the intoxicating whiff of autocracy with their morning coffee or whatever it is the residents of Uthamakistan drink in the morning. This wave is known as critical thinking and I shall attempt to employ it as I take a stab at answering @Gladwellotieno's question.

We are reminded, usually in the form of a joke, that there are two things that are certain in life: death and taxes. Of the former there is no escape; of the latter, evasion invites (in normal states) the unremittingly unforgiving attention of the State. Taxes are the means of dealing with all manner of public policy issues; without the revenues raised by taxes, doctors and nurses will not be paid, and their patients will suffer. Many will probably die. A few patients, at least those with the wherewithal, will engage the services of private healthcare providers and probably escape suffering and death. That, in a microcosm, is a private solution to a very public problem. It is one that millions of Kenyans are familiar with for in the past one year, both doctors and nurses employed in the public service have gone on strike, patients have suffered, many patients have died, and a few have survived because they could afford private healthcare services.

However, what seemed to be a solution was only half that. The unseen ripples of the pebble thrown into the still, healthcare pool will continue for a long time, years perhaps. In the over 160 days of the nurses' strike, childhood immunisation was not done for hundreds of thousands of children, tubercular patients did not have their medicines administered to them, hundreds of cancer patients were forced to dig even deeper into their savings to access private oncology services, and so on.

What will be immediately apparent is that while suffering Kenyans had no choice but to pay their taxes lest they invited the attentions of the taxman, the services those taxes were supposed to fund were not provided and so they were forced to spend what little they had saved on privately-provided services. Family incomes have been decimated. Local economies have been stunted. Mini-epidemics are certainly on their way. Misery has been visited on families. Private solutions to public problems are no solutions at all. They are band-aids on involuntary amputations, that is, wholly and utterly inadequate.

Mr Sonko's colours

Sometimes it pays to re-state the obvious: Mike Sonko is a politician of rare talent. What he is not, and probably never will be is a statesman or political leader of great talent. I don't mean that he will not find future electoral success; given his remarkable political career since he won the Makadara by-election, Mr Sonko will probably continue to surprise and confound his detractors for the foreseeable future. The manner he has governed the Capital City, though, shows you the limits of one-note political talents, such as his for winning elections against all odds.

It only needs to rain for a few minutes for Mr Sonko's leadership deficit to be revealed. That the low hanging fruits of city leadership have so far escaped his grasp should worry his constituents, backers and fans. That he has attempted to cover this deficit by robustly and rambunctiously taking on political rivals as far afield as Migori shouldn't surprise us; where Donald Trump leads, Mr Sonko is likely to follow. Even his "partnership" with Polycarp Igathe, his supposed technocratic deputy with a firm grasp of business management techniques, will not hide the fact that in basic city leadership, the second Nairobi City county government has failed and continues to fail its residents.

Drains remain clogged more than a week after the rains started. Pavements in the unfashionable parts of the CBD are still held hostage by hundreds of "hawkers", while others are muddy tracks that force pedestrians onto the roads. Roads, for the most part, remain unmarked, making them high-risk environments at night when it is raining. Water and sanitation services by the Nairobi water company, wholly owned by the county government, are inadequate, to say the least: many residential areas must make do with rationed supplies and other do without. Public transport remains chaotic, at best, leading to lost man-hours occasioned by the traffic jams caused by matatu crews. And despite Mr Sonko's social media blitz on his war against garbage, a casual stroll through the unseen parts east of Moi Avenue quickly disabuses one of the scale of his success: Mfangano Lane, Ukwala Lane and dozens of similar alleys are spectacularly filthy.

Good leaders know how to organise their workforces to achieve specific goals. Great ones know how to inspire their stakeholders to aim for the seemingly unattainable. Mr Sonko is neither good no great. His City Hall remains disorganised: the never-ending combats between his inspectorate and "hawkers", that almost always leads to injuries, loss or destruction of private and public property reminds us that organisational discipline is not Mr Sonko's strong suite. The same excuses that millions of US citizens made to persuade themselves that Donald Trump would "grow into the job" are the same ones we made about Mr Sonko. The fact that he could be referred to as "Mr Sonko" should have been a clue that sometimes we should judge books by their garishly flamboyant colours.

Kenyans are not morons

No one is neutral and if they say they are, well, I have a bridge in London you might want to buy. One of the most important relationships in Kenyan politics has been between Kenyan businessmen and the ruling party, its senior-most officials and its senior-most representatives in Government. This relationship has been a fact of life since the Queen of England granted the Imperial British East Africa Company a charter to operate in East Africa. The lowering of the Union Jack in 1963 did not alter one iota of this relationship. Kenyan (and sometimes foreign) businesses and Government are intertwined like the tendril-like formations of mangroves' root systems. The Kenya Private Sector Alliance's declaration that it is independent and neutral is a facile attempt to pull at our patriotic heartstrings in order to frustrate the National Super Alliance's calls for boycotts of companies associated with the ruling alliance. It will persuade very few Kenyans because Kenyans are not morons. Whether the boycotts work will depend on how many Kenyans think that it is worth the fight. That number is not as large as Nasa seems to think nor as small as the Jubilation dismisses it as. But what Kepsa has done has only added fuel to the fire. It might live to regret its "press statement".

Monday, October 30, 2017

Legitimacy? Nah, fam.

Legitimacy is not that difficult a concept to understand. Constitutional and statutory legitimacy is quite often easy to achieve if one is a stickler for the strict reading of constitutions and Acts of Parliament. In Kenya, especially over the past fifteen years, constitutional and statutory legitimacy has come to supersede all other forms of legitimacy, including moral, ethical or political legitimacy. The October 26 fresh presidential election is a testament to the triumph of legal legitimacy in the face of great moral, ethical and political illegitimacy.

The ruling alliance is dead set against admitting that it is in the throes of the greatest lack of faith in its legitimacy on five years. It has managed to sink even lower than it did in the wake of its "accept and move on" victory in 2013. On the 26th October, no matter how the numbers are managed, massaged or statistics-ised, out of 19 million voters, more than half, perhaps more than two-thirds, chose to stay away from the polls, hewing to the clarion call of the Doyen of the Opposition to boycott the poll because of the steadfast refusal of the ruling alliance and the electoral commission to make concrete and meaningful changes to ensure a credible election.

Even if we accept the bad-faced canard that "seven and a half million voters chose to participate in the election, this represents only about 40% of the registered voters. In an atmosphere of great mistrust, especially of the ruling alliance and the electoral commission on account of the harsh indictment of both by the Supreme Court, when sixty percent of the voting public chooses to stay home on the day of the presidential election, whatever legitimacy one enjoys cannot be moral, ethical or political even if the strict letter of the law is observed to the last comma (which it has not even in this fresh election). But when the ruling alliance glories in declaring whose swathes of the population as "paid militia" and sees no wrong in the heavy-handed police action in "opposition strongholds" that have led to scores of dead Kenyans, any talk of legitimacy is an insult to any rational adult.

The fresh election has exposed the ruling alliance for what it is: a money-obsessed, formalism-ridden, intellect-bereft, immoral and ethically bankrupt cabal of power-hungry managerialists whose idea of a peaceful nation is one in which all its enemies -- aka rivals -- are dead. The ruling alliance is not interested in the education of its young, the health of its people or the safety of the nation; the ruling alliance is hell-bent on selling national assets in the market of developmental economics come hell or high water. In this scenario, the ruling alliance is the hell and the high water. Legitimacy? No, good people. The ruling alliance is far, far away from legitimacy.

On our own

I watched the junior senator from Arizona, Jeff Flake, announce that he would not be seeking re-election when his term came to an end in 2018. While he agrees with Donald Trump's policy agenda, Mr Flake cannot stand the debasement of the US political process that is underway because of Mr Trump's tone, style and temperament. Mr Flake and Bob Corker, another senator who will not seek re-election in 2018, believe that Mr Trump is temperamentally unfit to be the leader of their party or of the country. In this age of everyone getting theirs no matter what, it is strange that there are politicians willing to stand on principle, something that Kenyans have been denied by the belligerent politicians who have driven our country of constitutional cliffs without realising that what they do in the pursuit of political power ripples in every sphere of our lives.

When we voted on the 8th August, we did so in the full knowledge that neither the political actors or the electoral commission had the nation's best interests at heart. Since the last disputed presidential election in 2013, it was increasingly certain that the ruling alliance was attempting to use the post-1969 play book to win the presidential election at all costs, especially by packing the electoral commission with its people and doing everything in its power to limit the Opposition's room for maneuvering. Laws were amended to give the ruling alliance every possible advantage. These underhanded tactics were exposed when a majority of the Supreme Court invalidated the presidential election and ordered a fresh one in sixty days, which was held on the 26th October.

Neither the ruling alliance, which now enjoys a very large majority in Parliament, nor the electoral commission took to heart the scathing observations of the Supreme Court in setting the stage for the fresh presidential election. Laws were once again amended without the hint of a reference to the concerns of the Opposition, and the commissioners and the commission's staff were bullied into toeing the ruling alliance's line.

When the commission's man in charge of information and communication technology for the commission was murdered, we should have realised that there were men and women who had concluded that the presidential election was too important to be left in the hands of the voters. The murder has not been solved. The Supreme Court agreed that the commission and its officers had committed illegalities and irregularities and it is hard not to conclude that part of the reason why these illegalities and irregularities occurred was because of this unsolved murder that may have allowed the electronic electoral system to be manipulated from the inside as well as by outsiders.

For this reason we mustn't take the panicked flight by a commissioner's brother and his family from Kenya on account of death threats easily. Indeed, a week before the fresh presidential election, the commissioner fled the country and refused to participate in the management of the election. She had also faced intimidated by agents of the ruling alliance when she had, after the Supreme Court ruling, been briefly detained at the airport while on her way out of the country. The members of the Supreme Court who had voted to invalidate the presidential election had also faced increasing acts of bullying and intimidation, name-calling and threats from members of the ruling alliance including from the riling alliance's senior-most members. The signal that an attack on the Deputy Chief Justice's driver sent to the rest of the country must have emboldened the Opposition to boycott the fresh election.

Between the invalidation of the presidential election and the fresh election, parliamentarians were faced with decisions that political events required them to take. Those in the ruling alliance chose to lay supine as constitutional norms were laid to waste. Those in the Opposition, taking hardline stances, chose to misinterpret and misapply the law, including the rulings of the Supreme Court. The effect was a stalemate that has not been resolved even now that the fresh election has been held, the ruling alliance has announced victory, the commission has elected to believe its own hype and the rest of the country that isn't occupied by armed police or marauding Mungiki gangs, has heaved a sigh of relief, shrugged its shoulders and gone back to its hustle. What we haven't seen are parliamentarians taking a firm stand against the constitutional and political impasse without paying obeisance to their political godfathers. Kenya is yet to witness a Jeff Flake or a Bob Corker. Kenya is yet to witness a principled stand against chicanery. Kenyans are on their own.

Monday, October 16, 2017

On temporary incumbency

134. Exercise of presidential powers during temporary incumbency.
(1) A person who holds the office of President or who is authorised in terms of this Constitution to exercise the powers of the President...(a) during the period commencing on the date of the first vote in a presidential election, and ending when the newly elected president assumes office...may not exercise the powers of the President specified in clause (2).
140. Questions as to validity of presidential election.
(3) If the Supreme Court determines the election of the President-elect to be invalid, a fresh election shall be held within sixty days after the determination.
This is where my laissez-faire attitude towards grammar and comprehension that comes to bite me in my backside. The 1st September invalidation of the 8th August presidential election have given rise to the a simple question with profound implications: is Uhuru Kenyatta bound by the provisions of Article 134 on the exercise of presidential powers during temporary incumbency?

It all depends on how you interpret the judgment of the Supreme Court on the 1st September. The Supreme Court was called to determine whether or not the presidential election was valid. It found that the election of the president-elect was invalid. The key expression in Article 140 (3) for our purpose is "president-elect". Taken together with the words in Article 134 (1) (a), "during the period commencing on the date of the first vote in a presidential election, and ending when the newly elected president assumes office", Uhuru Kenyatta is bound by the provisions of Article 134 because, notwithstanding that his election was invalidated, the period described in 134 (1) (a) is not yet spent.

The date of the first vote in a presidential election was the 8th August. A newly elected president has not yet assumed office. What the Supreme Court ordered, in the language of Article 140 (3), is not a presidential election but a fresh election for the office of the president. Until Uhuru Kenyatta is successfully elected on the 26th October, and a petition under Article 140 is defeated, he remains a temporary incumbent in the office of the president and is bound by the provisions of Article 134.